WorkCover Authority of New South Wales (Inspector Ian Batty) v Graincorp... [2001] NSWIRComm 127 | Case summary

1 This matter is a prosecution by Ian Batty (the prosecutor) as an inspector of the WorkCover Authority of New South Wales (WorkCover) of Graincorp Operations Limited (the defendant/Graincorp) for a breach of s 15(1) of the Occupational Health and Safety Act 1983. 2 The Summons alleges that: On 18 August 1998, at the Werris Creek Silo at Silo Road, Werris Creek in the State of New South Wales, the defendant being an employer DID FAIL to ensure the health, safety and welfare at work of all of its employees in particular Lawrence Cunningham in operating an electrically powered tarpaulin rolling machine contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: a) the defendant at all material times employed a number of personnel at the Werris Creek silo. b) the defendant as part of its operations utilised an electrically powered tarpaulin rolling machine. c) the defendant failed to provide or maintain systems of work in the safe operation of the electrically powered tarpaulin rolling machine. d) the defendant failed to provide plant to wit the electrically powered tarpaulin rolling machine to ensure that employees could not become trapped in the dangerous moving parts of the said machine. e) the defendant failed to provide such instruction and training as may be necessary in the operation of the electrically powered tarpaulin rolling machine to ensure the health and safety of employees at work. f) the defendant failed to provide such supervision as may be necessary of its employees operating the electrically powered tarpaulin rolling machine so as to ensure the health and safety of employees at work. g) as a result of the said failures, Lawrence Cunningham suffered injuries. 3 The background to the prosecution is set out in the Agreed Statement of Facts tendered to the Court: 3. At all material times the defendant conducted a business of the handling, receiving, storage and exporting of grain throughout New South Wales. 4. At all material times the defendant conducted a grain handling facility at Silo Road, Werris Creek in the State of New South Wales. 5. At all material times the defendant employed a number of personnel at the grain handling facility at Silo Road, Werris Creek and in particular employed Lawrence William Cunningham, 53 years of age as a casual labourer at the said site. 6. At about 10.00am on the 18 August 1998, whilst working at premises at Werris Creek Silo situated at Silo Road, Werris Creek, Lawrence Cunningham, a 53 year old casual employee of Graincorp Operations Limited, sustained a fractured right forearm when his gloved hand was drawn into the inrunning nip point formed between the rotating roller bar and the onfeeding tarpaulin of an electrically powered tarpaulin rolling machine. 7. As a direct result of the accident, Cunningham was absent from work for twelve days and returned on selected duties for eight weeks. 8. Whilst at the time of the accident Cunningham was a casual employee, he had a previous work history of 35 years, being 25 years as a permanent employee and ten years as a casual employee, during which period Mr Cunningham had been involved in tarp rolling with the company, which is in the business of grain handling. 9. Tarpaulin rolling is conducted by a team of operatives at a frequency of 2-3 times per year, between generally March and August of each year, and on those occasions approximately 20 tarpaulins are processed. The tarpaulins, which are constructed of canvas or heavy duty PVC material have dimensions of 14 metres wide X 57 metres long and weigh approximately half a tonne. … 11. The system of work being used at the time of the accident involved 3-4 persons. One was located at the control section of the machine whilst the others were standing behind the electrically powered rotating roller bar, gripping the leading edge of the tarpaulin to be rolled, drawing it by manual force underneath the roller bar and then rolling it over the circumference of the roller bar and tucking it back into itself. This tucking action was achieved by Cunningham using his gloved fingers to push the tarpaulin into the inrunning nip point formed between the revolving roller bar and onfeeding tarpaulin. 12. Under normal conditions the tarpaulin, when being rolled, would involve the utilisation of a wire system whereby the tarpaulin would be rolled around the wire and would then roll onto the roller bar without difficulty. The Defendant acknowledges that if the fabric of the tarpaulin was weathered and stiff, then due to the different characteristics, it may not roll onto the bar without assistance from the operator tucking it underneath, as envisaged by paragraph 11 above. 13. The roller bars processed at Werris Creek silo potentially arrive from any Graincorp facility within the state, and may not necessarily be common in their characteristics. That is, some roller bars may have wire attachments; rope attachments or tape affixed to them to facilitate the securing of the tarpaulin thereon before it is rolled. In such circumstances the method of affixing the leading edge of the tarpaulin at the Werris Creek silo was then left to the discretion of the operator, there being no standard or systematic approach to the task. Additionally, there appeared to be no coordination in relation to the specific tasks performed by each person in the crew. It is simply a system that relied on individual job knowledge and an expectation that each crew member was proficient in all tasks involved in the tarpaulin rolling process. 14. Cunningham, despite having received no formal training or instruction in the use of the tarpaulin rolling machine, had used this system of tarpaulin rolling extensively at this location for approximately 18 years with the knowledge and concurrence of the Silo Manager Mr Neville Hartin. 15. The machine which was purpose built in 1980-81 was at the time of the accident unchanged in its original design. Similarly the system of work utilised in the operation of the machine also remained unchanged. 16. Graincorp Operations Limited had a similar accident at their Croppa Creek site on 17 April 1997 when Mr Victor Warrender, a Supervisor, sustained a fractured left arm whilst rolling tarpaulins using a tractor mounted rolling machine. The matter was listed for plea in the Chief Industrial Magistrate's Court before Magistrate Pat Staunton on 8 September 1999. A conviction was recorded pursuant to Section 15 of the Occupational Health and Safety Act 1983 and a fine of $2500 imposed with court costs and professional costs of $500. 17. Subsequent to the accident, on 17 April 1997, a Safety Bulletin was produced, signed by the Northern State Manager, Mr Kevin J Lloyd and dated 26 April 1997. The bulletin provided instruction to employees on the system to be used when rolling tarpaulins and was complemented by a sketch detailing the method of fixing the leading edge of the tarpaulin to be rolled onto the roller bar. The injured person Cunningham, the Silo Manager Hartin and other co-workers interviewed stated that they were not aware of the document and had never seen it. Cunningham made no comment as to the content of the safety bulletin as he is unable to read. Hartin asserted that the system proposed was unsafe. 18. Graincorp Operations Limited [CAN 003 875 401] has its registered office located at Level 10, 51 Druitt Street, Sydney and employs approximately 72 staff in the Northern area on both a permanent and casual basis. The Werris Creek complex employs 2 permanent and up to 18 casual staff on an as needed basis. 19. A prohibition notice (No115988) in terms of Section 15 of the Occupational Health and Safety Act 1983 was served on Graincorp Operations Limited to develop a system of work for rolling tarpaulins which denied persons access to the inrunning nip points formed between the tarpaulin and the revolving roller bar of the tarpaulin rolling machine. The notice was effective for all such machines owned and/or used by Graincorp Operations Limited throughout the state of New South Wales. 20. Follow up inspection of the prohibition notice revealed that the roller bars had been altered, in that a "keyhole" has been machined into each end of the roller bar which accommodates a round metal locking bar. This modification now requires the Operator to place the leading edge of the tarpaulin underneath the bar, then slide the bar longitudinally to lock and retain the tarpaulin. Operation of the machine is then initiated through the newly fitted roving pendant control which is also a feature of the remedial work undertaken in response to the prohibition notice. A training program being undertaken by all relevant staff has supplemented the modifications to the machine. Note: Minor typographical and spelling errors have been corrected. Evidence 4 The Court had before it the following evidence tendered without objection: 1. Agreed Statement of Facts; 2. Report of the factual inspection of the site and equipment by Inspector Batty together with thirteen photographs; 3. Affidavit of David John Edward Wales, Risk and Safety Advisor for the Northern Division of Graincorp since 1988, but employed by Graincorp's predecessor since 1971; 4. Graincorp Silo Operations Manual; 5. Safe and Healthy Practices, a guide to basic safe and healthy work practices published by Graincorp; 6. Statement of prior convictions; 7. A video specifically developed to demonstrate the tarp rolling process, (together with three Graincorp videos training and induction videos, shown as background only, but not tendered. 8. Safety Bulletin dated 26 April 1997 issued by Graincorp's Northern State Manager relating to Bunker Storage Tarp Rolling Machine Safety after the previous accident in 1997. 5 Mr Wales was not required for cross-examination. It was explained by Mr Stiles solicitor appearing on behalf of the defendant, that, nonetheless, it was only because of Mr Wales' absence overseas that he was not present in Court. Present in court were Mr Lloyd, the Northern Division Manager from Tamworth and Ms Pease, the Risk and Safety Manager of Graincorp. Prosecutor's Submission on Sentence 6 Ms A Backman of counsel contended on behalf of the prosecutor that: 3. The primary factor to consider in relation to penalty here is the objective seriousness of the offence: Fletcher Constructions Australia Ltd v WorkCover Authority of NSW (Inspector Fisher) (1999) 91 IR 66 at 77-81; Lawrenson Diecasting v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 474; WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) (2000) 99 IR 163 (IRComm, NSW, Wright J, President) at 185 to 187. 4. A number of objective features in this case, which call for the imposition of a substantial penalty, are as follows: (a) the maximum penalty (for corporations) prescribed by Parliament for the offence at the time it was committed (18 August 1998) was $550,000, however, the defendant has a prior conviction which activates s 51A OHS Act thereby increasing the maximum penalty to $825,000: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29 at 48 to 61; s 17 Crimes (Sentencing Procedure) Act, 1999 (NSW) . (b) the need for general deterrence; (c) the defendant's failure to provide a safe system of work and inform itself of safe working; (d) the nature of the offence in that there were available simple steps to remedy the defective system of work; (e) the nature of the offence in that the injuries manifested the degree of seriousness of the relevant detriment to health and safety. 5. In fixing an appropriate penalty in the present case, an objective feature is the need for general deterrence as this is one of the main purposes of punishment: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388, … 7. When considering a statute giving expression, as a matter of public policy, to standards of safety, management has a positive obligation of informing itself of circumstances of safe working: WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh & Thora Saw Milling Pty Ltd (1995) 59 IR 89 at 100. 8. In response to an earlier accident which occurred on 17 April 1997 the defendant produced a Safety Bulletin. The system proposed in that Bulletin has been conceded by the defendant to have been "unsafe" in certain circumstances. … 10. The defendant is entitled to have taken into account, as mitigating the objective seriousness of the offence, its plea of guilty: R v Winchester (1992) 58 A Crim R 345 at 350, NSW CCA, per Hunt CJ at C2, Smart and Grove JJ concurring. Where a defendant enters a plea of guilty in this Court, it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton (2000) NSWCCA 309 at paragraphs 160 and following; WorkCover Authority of NSW (Inspector Sheppard) v The State Rail Authority of NSW [2000] NSWIRComm 179 at paragraph 40. 11. Here, the plea has been entered in circumstances where the prosecution case in relation to the offence could be described as strong. … 12. The defendant has a prior conviction. This prior conviction concerned a similar accident on 17 April 1997 at the defendant's Croppa Creek site: … 7 In oral submissions, Ms Backman said: The offence before this Court is a serious offence. It is serious primarily because there was an earlier incident involving the same type of machine, the electric powered tarp rolling machine, some fifteen months earlier, on 17 April 1997. In those circumstances rests my submission it was a serious offence, the defendant being on notice at the time of the offence, which occurred on 18 August 1998, that the tarp rolling machines were dangerous pieces of equipment. There is in Mr Wales' affidavit a reference to assistance given by the defendant corporation to Mr Cunningham. There is a wealth of authority to the effect where the defendant gives some assistance to a victim that is a further factor in mitigation that maybe taken into account in the defendant's favour on sentence. Defendant's Submissions on Sentence 8 Mr Stiles, solicitor, submitted on behalf of the defendant that the character of the defendant is a matter that the Court can consider in the determination of penalty WorkCover Authority of New South Wales (Inspector Dubois) v Transfield Pty Ltd [2000] NSWIRComm 204. 9 Graincorp Operations Limited is a private company operating since September 1992 with approximately 10,000 shareholders, whose core business is the provision of bulk grain storage and handling and the provision of those services to growers and buyers in both New South Wales and since last year, Victoria also. 10 The corporate history of the defendant is that it operated as follows: (a) Grain Elevators Board of New South Wales from 1954 to 5 April 1981. (b) Grain Handling Authority of New South Wales from 6 April 1981 to 30 September 1989. (c) New South Wales Grain Corporation from 1 October 1989 to 30 September 1992. 11 The defendant employs some 300 permanent staff and 2000 to 2500 casual staff in harvest season in New South Wales alone (D Wales Affidavit paragraph 4). 12 The defendant has 411 separate silo and receival centres used for the acceptance and transfer of grain. These have a storage capacity of 18 million tonnes. It has its own rail network of 697 kms of track which it crews as well as Port Operations at Port Kembla and Newcastle in New South Wales. In the context of its operation of receiving, classifying, storing and transferring large quantities of grain with a substantial workforce and a high ratio of casuals employed seasonally, its safety record is one that is submitted to be exceptional over fifty seven years. 13 The defendant has been a self insured entity since 31 October 1983 with a commitment to safe workplace practices. 14 As to contrition and co-operation, the defendant is on record as stating its determination to assist the prosecution with its enquiries into the circumstances of the accident. It has ensured all entitlements of the injured worker were speedily processed and that he was assisted in his early return to work. These are matters the Court may also take into consideration. See WorkCover Authority of New South Wales (Inspector Dubois) v Transfield Pty Ltd (2000) NSWIRComm 204 at 18. It has further evidenced its acceptance of the seriousness of the offence and its contrition by the appearance of Senior Management at Court. 15 The defendant is entitled to have taken into account, on sentence, as a matter mitigating the objective seriousness of the offence, its plea of guilty: R v Winchester (1992) 58 A Crim R 345 at 350, NSWCCA, per Hunt CJ at C2, Smart and Grove JJ concurring. The Court is also entitled to consider the timing of the entry of the plea. It is submitted the plea here was entered at the earliest possible opportunity, it having always been the Defendants intention through its management to do so in those circumstances. The defendant urges the application of the guideline judgment at the upper level of the range of 10% to 25%. 16 The defendant has accepted that the tarp rolling system that was utilised by it, through its servants and agents at Werris Creek on 18 August 1998 was deficient and that injury therefore occurred to Mr Cunningham. 17 The defendant responded to the incident to Mr Cunningham in three substantial ways: (i) By modifications to its tarp rolling machines. (ii) By ensuring that safety bulletins distributed are signed for by each member and that records are kept of distribution and receipt. (iii) By including tarp rolling in the Training Matrixes and Site Operations Manual developed in 1999 and 2000. 18 The defendant's Occupational Health and Safety commitment is shown in its structure, training, review process and reflected in its otherwise exceptional safety record. Each of its four divisions has its own Risk and Safety Advisor who oversees Occupational Health and Safety practices in their area, conducts training and reports to both their Divisional Manager and the Risk and Safety Manager in Sydney. The company's ongoing development and review of training both previous to the injury to Mr Cunningham and subsequent thereto is evidence of its commitment to safety. 19 The defendant had to reappraise its distribution of bulletins given the clear acknowledgment the staff had not seen the bulletin issued after the first incident, and the defendant has reappraised its system in relation to the operation of the tarpaulin. 20 In relation to the admission contained in Mr Wales' affidavit at par 25, (set out later) Graincorp did not intend to say this matter is not serious. It has been treated as serious by the defendant. The employee was off work for twelve days. Although the long term effects on the employee are not significant it has provoked a serious response. Graincorp would not attempt to ask the Court to take an approach other than that. That is a proper concession and one which Mr Stiles always had instructions to make. 21 This is a serious matter. Graincorp concedes there is a deterrent factor but submits that the Court is entitled to take into account the various matters in mitigation. 22 In light of the general record it is not a matter in which the company had walked away from the tarp rolling examination. It had thought by education and looking at the operation this would not have happened again but the company concedes it did happen again and further steps were taken. 23 The defendant is also a good corporate citizen. It is, through the Graincorp Foundation, set up in August 2000, involved in the sponsorship of a number of rural based community activities. The Foundation receives an allocation of a percentage of after tax profits of the company for sponsorship in the rural areas in which the company operates. Consideration 24 Without repeating them again, I accept, as did the defendant, the general principles as to sentencing advanced by the prosecutor in pars 3 - 5, 7 and 10 of its written submissions set out earlier in this judgment. I accept also those principles as to mitigation of penalty relied upon in the authorities cited by the defendant. 25 Specific submissions by the prosecutor went to the following matters: The relevance of prior convictions on sentence as outlined in Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at pp 477-478; and The defendant's capacity to pay a fine: s 6 Fines Act 1996; Ferguson v Nelmac (1999) 92 IR 188 at 209; Rahme (1989) 43 A Crim R 81 at 86, 87; Sgroi v The Queen (1989) 40 A Crim R 197 at 201. 26 The Court was advised that the defendant has two previous convictions, both for breaches of s 15(1) of the OH&S Act. The first conviction in 1991 was against the New South Wales Grain Corporation Limited, a predecessor of the defendant, for which that body was fined $1,200. (It was Mr Stiles who drew the prosecutor's attention to the earlier conviction against the earlier corporate entity.) The second was against the defendant in September 1999 and in connection with which the defendant was fined $2,500. 27 The 1991 incident involved a crush injury caused when a bobcat reversed. The 1999 conviction related to an accident in 1997 involving the tarp rolling process in the Northern Region. 28 That accident to Mr Warrener in 1997 some fifteen months earlier led to a review of tarp rolling within the company but it was considered the incident took place as a result of the employee breaching the direction to place one's hands near the roller after the mechanised machine had been turned on. 29 The further review conducted after this latest incident satisfied the company that in certain circumstances where the tarps were old, wet or particularly brittle, staff had difficulty when the machine was turned on having it catch using the wire system. The nip point meant that staff had used their hands. This was not a regular occurrence but it did occur and in the record of interview Mr Cunningham gave he referred to it as one in one hundred or once in a blue moon. 30 The company concedes that led it to undertake the modifications now required. 31 The latest incident has led to the company reappraising not just the methodology of how the tarp roller operated as to the nip point and its instigation of the key bar system but also to make a number of general changes. 32 Mr Wales described those changes. The changes to the roller that have now been effected not only included the method of "key fitting" a bar around which the tarp is drawn, but other additional safety measures were added. These included: (i) Modifications to the drive housing that holds the bar into the frame. The design intention was to further eliminate nip points. (ii) A modification to the hydraulic system rollers involving new valves to slow down the system to reduce the likelihood of tarps catching. Similar modifications also took place with the electrical system rollers. (iii) The addition of emergency stop buttons being separate hand-held devices for both hydraulic and electrical tarp rolling systems. This was to overcome the reliance on the driver in the loader towing the tarp rolling machine turning off the hydraulic. With the electrical system the operator was reliant on hitting a shut-down button quickly. The hydraulic system also had a second emergency stop button attached to the frame. (iv) To assist to maximise the efficiency and safety of the operation and reduce further the risks of injuries, a secondary roller was placed on the electrically operated system to cut down on nip point injury. Due to design differences this was not necessary with the hydraulic rollers. (v) The electrical system also had an additional circuit breaker added to prevent injury from electrical faults during the operation. (vi) A ratchet clamp was added to the electrical bar so that adjustments could be made to the roller housing without as much manual handling being involved and thereby reduce strain injuries occurring. 33 The company is required to ensure the safe training is kept to a high level. For that reason it determined to add tarp rolling to training matrixes for all employees. After 1999 various employees in the Northern State area undertook tarp rolling training. Mr Wales was involved for over six hours. There were two titles, track awareness and defective rail reporting and tarp roller standard work instruction. These were site training sessions which Mr Wales presented. The tarp rolling aspect was over three hours and the company records, at each session, the numbers of staff that complete that tarp rolling standard working operation. 34 In his affidavit, Mr Wales set out the history and background of Graincorp and described its corporate structure and operations. He placed particular emphasis on its activities as to health and safety, including training: induction sessions, booklets, videos, training schools, on site training, and site audits at harvest times to check the level of training skills imparted. 35 The Site Operations Manual was published June 2000 after meetings over an 18 month period involving up to 12 OH&S employee representatives. Mr Wales deposed that: Chapter 7 of the manual is devoted to "Bunker Covers and Equipment" and 7.1 comprises the standard work instructions now for tarp rolling throughout the State. I wrote the initial draft for the instructions on operating of tarp rollers which was then the subject of discussion and some minor comment and amendments during the course of the workshop meetings referred to, before its final adoption. … The next training module which will incorporate tarp rolling operations will commence in late May or early June 2001. 36 It was said by Mr Wales: 25. I accept that the system as proposed in the 1997 Safety Bulletin was unsafe in circumstances where the operator tucked the tarp underneath when the machine was in motion. I believe that the modifications now effected have reduced the risk of injury to employees. (It was stated in oral submissions by Mr Stiles that that could still of course apply even to the secondary roller today because the machine cannot be guarded, in carrying out the operation they do.) 26. Following service of the Prohibition Notice referred to in paragraph 19 of the Statement of Facts, such notice was referred to me as the Risk and Safety Manager for the Northern Region. I immediately distributed the Prohibition Notice to all Occupational Health and Safety personnel for Graincorp throughout the State. 27. In consultation with management of the defendant, tarp rolling immediately ceased until we were satisfied that we had an alternative system that could be implemented with which both management and WorkCover were satisfied as being safe for the purpose for which it was designed. … 29. A prototype tarp rolling machine was initially developed by Mr Tony Huntley in the Southern Region, which involved a "key bar" design system. I am informed the system had been designed and was being trialed in or about August 1998 in the Sourthern Region of Graincorp Operations. I understand this was because they were having difficulties with the tarp rolling operation in the circumstances outlined in 21 above [ie weathered and stiff tarpaulins] and were looking at improvements to the systems. 37 In Veen (164 CLR at 477), the High Court considered the principles to be applied on sentencing in respect of prior offences of the defendant: There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties. 38 The Court of Criminal Appeal (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ) on 17 August 2000 delivered judgment in R v Thomson; R v Houlton [2000] NSWCCA 309, the guideline judgment as to pleas of guilty in criminal proceedings. The guideline adopted and set out in that judgment is as follows: 160. The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In come cases a plea will not lead to any discount. 39 The guideline is to be considered with the relevant provision of the Crimes (Sentencing Procedure) Act 1999 which replaced s 439 of the Crimes Act 1900 and which provides: 22 (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. 40 The guideline was adopted and discussed by Wright J, President in WorkCover Authority of New South Wales (Inspector Robert Sheppard) v The State Rail Authority of New South Wales (unreported; 99/3369; 6/10/00). After setting out the guideline, his Honour said: Also relevant is the approach followed and applied many times by this Court in R v Winchester (1992) 58 A Crim R 345 … … I consider it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton in determining the fine that should be imposed on the defendant in these proceedings. Subject to that consideration, the principles that should be applied are clear and well settled: see, for example, Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales at 474-476 and Page v Walso Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at 21-24. …

41 I do not accept completely the prosecutor's contention at par 4(c) of its submissions that the defendant failed to inform itself of safe working. 42 Although the defendant did not ignore the accident to Mr Warrener in 1997, its investigations led it to the conclusion that the accident was caused by the employee. It saw the remedy as education of employees and circulated a special safety bulletin. That remedy was not effective in that it depended for its effectiveness on being distributed to all workplaces and read by all employees. As par 17 of the Agreed Facts accepts, the special safety bulletin was not received at the Werris Creek Silo and, in any event, the injured employee is unable to read. It was also not effective for a further reason: the system remained unsafe as was acknowledged by Mr Wales. 43 That response, moreover, did not take into account long standing principles as to the liability of employers for injury to employees, such principles having been enunciated in authorities such as Dunlop Rubber Australia Limited v Buckley [(1952) 87 CLR 313 at 320] where it was said by Dixon CJ, in terms adapted to the circumstances of many later cases: It is 'dangerous' if it is such that it may reasonably be foreseen to be a source of injury to people who may be in the vicinity, taking them with all the ordinary infirmities to which human nature is prone. The occupier must realize that not everybody is careful: many are hasty, careless or inadvertent; some are unreasonable, or even disobedient. It may be unlikely that they will act in such a way, but it is not only the likely but also the unlikely accident against which the occupier must guard. 44 More recently Hill J in WorkCover Authority of New South Wales (Insp Anukucic) v Namoi Cotton Co-Operative Ltd (unreported; IRC97/2251; 14/7/98 at p 9) said: It is not, of course, always possible to foresee the various acts of inadvertence which employees may commit but the obligations of an employer under the Act require it to conduct its operations on the basis that such acts will almost certainly occur from time to time; it must therefore guard against them to the fullest extent practicable. 45 To round out almost fifty years of exposition of that principle I cite a recent statement made by a Full Bench of this Commission (Wright J, President, Walton J, Vice-President and Kavanagh J) in Inspector Peter Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; IRC00/4192; 20/2/2001): The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. 46 That having been said, the Court accepts that, in relation to the defendant's antecedent OH & S history, this is a case that, in terms of Veen v The Queen [(1987-1988) 164 CLR 465 at 477], could be categorised as "an uncharacteristic aberration" and most certainly the offence is not one that manifests "a continuing attitude of disobedience of the law". 47 Mr Wales advised that he was directed by Management to instruct Graincorp's solicitors, Messrs Grahame Goldberg Partners to enter a plea of guilty to the breaches of s 15(1) of the OH&S Act as soon as possible and to assist the prosecutor not only in his enquiry into the circumstances of the accident suffered by the injured worker, Lawrence William Cunningham, and to ensure that safety procedures are instituted to ensure that a similar breach to s 15(1) of the OH&S Act does not occur again. 48 Consideration of the penalty to be imposed on the defendant would take into account fines for incidents which had occurred anywhere within the defendant's operations, not just those that may have happened in its Northern Division. On that basis, the prosecution accepted that the Court could take into account the fact that in the Southern Area of Graincorp experiments were being undertaken in August 1998 to improve the tarp rolling procedures. 49 I accept the defendant's submissions that in the context of its operations involved in dealing with large quantities of grain, employing some 300 permanent and 2,000 to 2,500 casual staff in harvest season in 411 separate silo and receival centres in New South Wales and over its own rail network of 697 kms of track, that its safety record with only two convictions recorded, is exceptional over the fifty seven years, it, and its predecessors, have operated. 50 The northern area of the state where this incident took place has ten tarp rollers of which two are electric and the others are hydraulic. There is an ongoing commitment in cost by the company to ensure the improvements deemed necessary. The company has since this incident spent, in the last two seasons $54,000 and $52,000 in each of the years in relation to the improvements that are the subject of the work done since this incident. That is in relation to the cost of the bars alone. In relations to the electronic control systems there is a $7,000 cost for each tarp roller. 51 I also take into account the defendant's assistance to the injured employee, the modifications it has made to the tarp rolling machines, the inclusion of tarp rolling into its training matrixes and Site Operations Manual, and its involvement as a good corporate citizen in rural based community activities through the Graincorp Foundation set up in August 2000. I also take into account the fact that Mr Wales said that he would continue to monitor the operations of tarp rolling and would, during the course of training programmes, seek employees' comments and suggestions regarding safety and further improvements to the system. 52 In the light of the evidence before the Court, including the Agreed Statement of Facts, and taking into account proper concessions made on behalf of the defendant, I find that the plea of guilty entered by the defendant was properly made. 53 That being so, I find the offence proven, accept the plea and enter a verdict of guilty against the defendant. 54 The Court states formally that in its consideration of penalty it has taken into account the defendant's early plea of guilty. 55 The maximum penalty for the offence is $825,000. This total comprises a statutory maximum of $550,000 for offences occurring after 1 September 1997 (when the value of penalty units increased) and the application of s 51A, OHS Act. The sentencing principle that existing sentencing patterns are to move in a sharply upward manner in line with the intention of the legislature which is revealed by significant increases in penalties under OHS Act, is applicable here: WorkCover Authority of NSW (Inspector Sheppard) v The State Rail Authority of NSW at paragraph 40. (See also Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209.) 56 I also take into account general and specific deterrence in accordance with the principles discussed by a Full Bench of this Commission (Wright J, President, Walton J, Vice President and Kavanagh J) in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [2000] NSWIRComm 71 [(2000) 99 IR 29 at 60 ff; (2000) 49 NSWLR 610]: Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable. On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: … … However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely re-active: WorkCover Authority (NSW) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. 57 In respect of general deterrence, the offence in question, being peculiarly related to machinery involved in the defendant's operations, would not be one prevalent in society and one which represents a serious threat to the community. There remains, however, the duty of the Court in setting a penalty to compel attention to occupational health and safety issues, that duty corresponding to another duty on the Court not to impose such a penalty as would be oppressively high (see Hungerford J in Fisher v Samaras Industries Pty Limited [(1996) 82 IR 384 at 388]. 58 In this case, it seems to me, that while deterrence is to be taken into account, the matter of specific deterrence looms more largely. In that respect, I accept that the defendant has recognised the failures in its reactions to the original tarp rolling accident in 1997 and recognised the deficiencies as to the steps it had taken after that accident. Even in that latter respect, it must be taken into account that while there were deficient responses to the 1997 accident in one region, in another region, whether in response to advice of that accident, or independently, steps were being taken to overcome the particular risk to safety involved. 59 I take into account the matters of specific and general deterrence in the context of the defendant's actions since the last accident, its otherwise outstanding safety record, the size and nature of the enterprise and other matters already discussed. 60 The defendant accepted the prosecutor's characterisation of this breach as serious. I put it, in all the circumstances set out in this judgment, as being towards the lower range. 61 I find that the appropriate fine would be $40,000. Taking into account the defendant's early plea of guilty, its co-operation with WorkCover, the measures it has taken in its organisation generally, not just in the Northern Area, both in relation to the equipment in question and to training in its use, all the matters set out earlier, and, in particular, its outstanding record as to safety over the last fifty years, I apply a 35% discount to that amount. Orders 62 The Court makes the following orders: 1. The defendant is convicted of the offence alleged in Matter No. IRC3861 of 2000 under s 15(1) of the Occupational Health and Safety Act 1983. 2. The defendant is fined the sum of $26,000 with a moiety thereof to the prosecutor. 3. The parties are to confer as to costs. If agreement is not reached, the Court is to be advised within twenty one days. ****************

WorkCover Authority of New South Wales (Inspector Ian Batty) v Graincorp Operations Ltd

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Judgment (9 paragraphs)

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Legislation Cited (1)

Cases Cited (18)

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